Brian Cote, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency,

Equal Employment Opportunity CommissionJul 24, 2000
01982735 (E.E.O.C. Jul. 24, 2000)

01982735

07-24-2000

Brian Cote, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency,


Brian Cote v. Department of the Navy

01982735

July 24, 2000

Brian Cote, )

Complainant, )

) Appeal No. 01982735

v. ) Agency No. 96-00158-004

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency, )

)

DECISION

INTRODUCTION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the agency

concerning his allegation that the agency violated the Rehabilitation Act

of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted

in accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

at 29 C.F.R. � 1614.405).

ISSUES PRESENTED

The issues presented herein are whether the complainant has established

that he was discriminated against based on physical disability

(hemochromatosis) when: (1) he was wrongfully cited for poor work

performance during a detail in April 1995; (2) he was denied the use of a

stool; (3) he was not informed of his right to rebut a letter of removal;

(4) his request for medical leave was denied on October 31, 1995; and

(5) he was terminated on November 2, 1995.

BACKGROUND

The complainant filed a formal complaint in July 1996 in which he raised

the issues identified above. Following an investigation, the complainant

did not request an administrative hearing and the agency issued a

final decision (FAD) dated January 21, 1998, finding no discrimination.

It is from this decision that the complainant now appeals.

In March 1994, the complainant was hired for the position of Visual

Merchandiser at the Naval Air Station in Willow Grove, Pennsylvania.

In that capacity, the complainant was required to assist in the manner

in which items for sale in the station's Naval Exchange (NEXCEN) were

both marketed and displayed. In September 1994, the complainant was

issued his six-month appraisal and received a rating of �Fair,� the

fourth-lowest of five possible ratings. According to the appraisal,

the complainant demonstrated �little initiative to start and complete

tasks without being told,� and it states that there had been several

instances when the complainant, despite having been told to perform a

particular task, had not done so. The appraisal states further that

the complainant's quality of work was �not acceptable.�

Although the complainant's supervisor debated terminating him at the

end of his one-year probationary period, the record reveals that a

new individual (Responsible Official 1, RO 1) became his supervisor at

that time. According to RO 1, although the complainant's performance

was not satisfactory, he believed that he should be retained based on his

artistic ability. He testified further that he believed the complainant's

poor performance was based, in part, on not having received sufficient

guidance from his first supervisor.

In April 1995, the complainant was detailed to Little Creek, Virginia,

where a new store was being organized. The complainant's duties during

the detail required him to work 12-hour shifts, and he noted that,

as a result of standing for excessive periods, he began having pain in

his legs. The complainant testified that he informed his supervisor

(RO 2) about the problem and was told that, if he �needed to take a

rest,� he should do so. RO 2 confirms that such an exchange took place,

but she noted that the complainant, rather than simply take breaks,

would disappear for up to 30 minutes at a time. In this regard, RO 2

stated that she looked for the complainant on one occasion and found him

reading a book and smoking a cigarette. According to RO 2, this was not

an uncommon occurrence and she noted that other employees complained

about the complainant taking extended breaks. RO 2 testified that,

because the complainant was not productive, he was sent back to Willow

Grove prior to the scheduled end of his detail.

The complainant saw a physician following his return and was diagnosed

with hemochromatosis, a condition which, as he described it, is one in

which excess iron accumulates in the blood. As a result, the complainant

was required to have his blood drawn once a week. Although the medical

reports submitted by the complainant are general in nature and do not

set forth any limitations related to his condition, some of the reports

state that the condition had resulted in arthritis. According to the

complainant, the arthritis was in his legs, and he stated, �The pain would

be consistent through the day. If I stood for 5 or 10 minutes, it hurt.

Longer periods of time it would get to the point where I could not work.

I felt fatigued.� The complainant also testified that having his blood

drawn made him fatigued.

In June 1995, the complainant was issued a Letter of Requirement based

on unsatisfactory work performance. The Letter cites four problems

with the complainant's performance, including failing to maintain a neat

and orderly storage area for visual merchandising fixtures; failing to

follow-up on supplies that had been ordered; failing to maintain a Fact

Tag program to provide distinctive tags in identifying retail price and

product information; and failing to maintain a merchandising program in

the softlines departments consistent with a rack management system.

The LOR states that the complainant's performance would have to improve

in these four areas, and that, unless he showed significant improvement,

formal action for unsatisfactory performance could be taken against him.

The complainant states that, at the time he received the Letter of

Requirement, he asked RO 1 for several months of leave to address his

medical condition. According to the complainant, this request was denied.

In response, RO 1 acknowledged that he denied the request, but noted that

the complainant never told him that the request was for medical reasons.

Rather, he explained that the complainant told him the request was to take

care of personal business related to both his newly-purchased house and

a business he had painting signs. RO 1 testified further that, although

the complainant mentioned having been diagnosed with hemochromatosis,

he did not tell him that he had pain in his legs and/or that he was

having problems performing his duties.

Over the next several months, the complainant's performance did not

improve, and though he has attributed his continuing problems to his

physical condition, he has offered few details regarding how particular

duties were impacted by his condition. The complainant also admitted

that he never asked for an accommodation to help him perform his duties.

He did, however, cite an incident that occurred in August 1995 when

he was told by RO 1 that he could not use a stool while working in

the aisles of the store.<2> In response, RO 1 testified that, on two

occasions, he found an abandoned stool in the aisles of the store.

When RO 1 learned that the stool had been used by the complainant, he

informed him that he could not use it in the aisles while the store was

open because it constituted a safety hazard. RO 1 also testified that

it was unclear to him why the complainant needed the stool, explaining:

You have to understand that his job did not require him to be in one place

for extended times ... He would spend time to put signs up after he

made them, and this would take minutes ... The biggest thing we needed

him to do with his job was to make signs for sales, make fact tags,

and shelf talkers ... This was done on the computer. He spent very

little of his time on display. Of all his talents he would not try to

apply himself to setting up shelves. This would have been something

that would have required him to stand for extended periods of time.

We took these functions away almost from the start.

The complainant was issued his annual Work Performance Review (WPR)

from RO 1 on September 23, 1995, and received an overall rating

of �Fair.� What is apparent from the record is that, of the seven

elements that comprised the rating, the complainant received a rating of

�Unsatisfactory� on four of them, including �Quality� and �Quantity.�

The WPR cites a number of problems with the complainant's performance,

including his continued lack of initiative, and states that he had

problems finishing tasks in a timely manner. The WPR states further that,

with regard to creating signs and tags, the complainant misspelled words

and listed both wrong merchandise and improper prices.

Shortly before the issuance of the WPR, a new individual (RO 3) became

the complainant's second-level supervisor, and she testified that one

of her initial tasks was to meet with each employee to discuss his/her

performance. RO 3 met with the complainant on September 28, 1995,

and, having been apprised of his problems, informed him that the Letter

of Requirement issued in June 1995 was still in effect. RO 3 testified

that, during the meeting, she asked the complainant to submit a plan

regarding things that could be done to improve the store, as well as

what he could do to improve as a Visual Merchandiser. According to

RO 3, the complainant �submitted a very general conceptualization of

issues relating to improvements, but no plan.� RO 3 held subsequent

counseling sessions with the complainant on two occasions in October

1995, but she noted that, as of mid-October, no progress had been made

regarding what they had discussed. In particular, RO 3 explained that

the complainant had not produced any fact tags, had not cleaned out the

upstairs, and had not produced any signs. She testified further, �If

he had done something, like the signs, I would have been able to keep

him on. But he did nothing. He could have printed the fact tags up

and have somebody put them up. These functions are done on a computer

where no standing is required.�

On October 20, 1995, the complainant was issued a notice of proposed

removal (NPR). The NPR cites several factors in support of that action,

including the failure to maintain an orderly and organized storage area,

failure to timely complete projects he had proposed, and failure to

satisfactorily complete projects assigned to him. In response, the

complainant submitted a statement dated October 30, 1995, in which he

explained the nature of his physical condition and attributed his poor

performance to the pain in his legs and his chronic fatigue. He stated

further that he could no longer perform his duties without an improvement

in his physical status, and, in this regard, requested two to three months

of leave to allow his condition to improve. The complainant noted, finally,

�In hindsight this is an action I should have done months ago that would

have prevented the slow decline of my recent unsatisfactory history of poor

and inconsistent work performance.�

By letter dated November 2, 1995, the RO 3 informed the complainant

that she had reviewed his rebuttal and found it insufficient to alter

the decision to terminate him. In particular, RO 3 stated that, given

the absence of medical information, the complainant's assertion that

his problems were related to his physical condition was unsupported.

She stated further, �You have failed to complete the simplest tasks such

as changing a display every 10 days. You've claimed spending up to a

day and a half to complete a store flier, when you've simply listed

line items in succession, which displays no demand of creativity or

ingenuity ... You have failed to establish a fact tag program leaving

two significant departments poorly merchandised and presented.�

ANALYSIS AND FINDINGS

To establish a prima facie case of disability discrimination under

a disparate treatment and/or a failure to accommodate theory, the

complainant must demonstrate that: 1) he is an �individual with

a disability� as defined in 29 C.F.R. � 1630.2(g);<3> 2) he is

a �qualified individual with a disability� as defined in 29

C.F.R. � 1630.2(m); and (3) he was subjected to an adverse personnel

action under circumstances giving rise to an inference of disability

discrimination and/or denied an accommodation. See Prewitt v. United

States Postal Service, 662 F.2d 292 (5th Cir. 1981). An �individual

with a disability� is defined as someone who: (1) has a physical or

mental impairment which substantially limits one or more of such person's

major life activities; (2) has a record of such an impairment; or (3)

is regarded as having such an impairment. 29 C.F.R. � 1630.2(g)(1)-(3).

�Major life activities� include functions such as caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. 29 C.F.R. � 1630.2(i).

In the present case, the medical documentation submitted by the

complainant supports a finding that he was diagnosed with hemochromatosis,

and that, as a result of that condition, he developed

arthritis in his legs. Although this evidence did not elaborate on the

symptoms and/or limitations related to the condition, the complainant

testified that his legs would hurt if he stood for five or ten minutes,

and that, if he stood for longer periods of time, he would be unable to

work. The Commission finds that this testimony is sufficient to conclude

that, as a result of the arthritis related to his hemochromatosis,

the complainant was substantially limited regarding his ability to

stand and walk. Accordingly, we conclude that the complainant is an

�individual with a disability.�

Having shown that he is an �individual with a disability,� the complainant

must demonstrate that he is a �qualified individual with a disability,�

i.e., one who, with or without reasonable accommodation, can perform

the essential functions of his position. The complainant must also

establish a nexus, or causal relationship, between his disability

and the performance problems that resulted in his removal. See Lynch

v. Department of the Army, EEOC Petition No. 03950128 (September 7,

1995). In considering that question, the Commission is not persuaded

that there is a connection. In so finding, we initially note that a

majority of the complainant's duties were sedentary, and, in this regard,

he has not explained why his standing limitations rendered him unable to

perform those duties in a satisfactory manner. Furthermore, although the

complainant testified that he first experienced symptoms in April 1995,

his six-month evaluation indicates that his performance problems date back

to his hiring in March 1994. As noted, that evaluation states that the

complainant demonstrated little initiative, did not complete projects,

and that the quality of his work was not acceptable. These problems,

particularly the lack of initiative, are essentially the same as the ones

that resulted in the complainant's removal.<4> Based on the foregoing,

the Commission finds that the complainant has not established a connection

between his performance problems and his disability. For that reason,

and because the complainant never demonstrated that he was capable of

satisfactorily performing the duties of his position, we find he is not

a �qualified individual with a disability.� Accordingly, we find the

complainant is unable to establish that he was discriminated against

based on his disability.

CONCLUSION

It is the decision of the Commission to AFFIRM the FAD and find the

complainant has not established that he was discriminated against as

alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS

THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

07-24-00

Date Frances M. Hart

Executive Officer

Executive Secretariat

01 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at www.eeoc.gov.

02 The extent to which the use of the stool was necessitated by

the complainant's condition is not entirely clear, and one co-worker

testified that the complainant had used the stool even before developing

physical problems.

03 The Rehabilitation Act was amended in 1992 to apply the

standards in the Americans with Disabilities Act (ADA) to complaints

of discrimination by federal employees or applicants for employment.

Since that time, the ADA regulations set out at 29 C.F.R. Part 1630

apply to complaints of disability discrimination. These regulations

can be found on EEOC's website: www.eeoc.gov.

04 The Commission is cognizant that the complainant was retained

following his one-year probationary period. We also find sufficient

evidence to conclude, however, that the reason was not because his

performance was satisfactory, but, rather, because RO 1 believed that

the complainant was a talented individual whose poor performance to that

point was the result of a lack of supervision by his first supervisor.